The news from Jackson County looks like a victory for Indian voting rights. After burning up lots of taxpayer dollars fighting a voting-rights lawsuit from its own Lakota residents, Jackson County agreed Friday to use the federal money that’s been available to it all along to set up a satellite early voting center in Wanblee during the 2016 election:
The sides signed a memorandum of agreement Friday. News of the settlement emerged first from Sara Frankenstein, the lawyer representing Jackson County. Krebs confirmed the deal Monday afternoon and provided a copy of the memo.
Native American voters had sued Jackson County because they didn’t feel it was fair to travel to the courthouse in Kadoka to cast absentee ballots.
U.S. District Judge Karen Schreier ruled earlier in the case, known as Poor Bear versus Jackson County, that federal Help America Vote Act funds could be used to pay for a satellite location at Wanblee.
The agreement appears to end a difficult dispute that began during the term of former Secretary of State Jason Gant [Bob Mercer, “Jackson County Will Open Voting Site in Wanblee,” Rapid City Journal, 2015.11.17].
In a motion filed Friday in federal court to dismiss Poor Bear v. Jackson County, Jackson County says it will use $61,684 in HAVA money to staff a satellite early voting station in Wanblee for four primary and four general elections for the statutory absentee voting period (by SDCL 12-19-1.2, 46 days prior to the election). That’s $7,710.50 per election. Cutting out weekends, that’s $241 per voting day, and that covers everything—salary, mileage, and miles. Wow—$241 probably covered an hour on the phone with lawyer Sara Frankenstein. What do you think the chances are that Frankenstein and her firm Gunderson Palmer have already spent well beyond $61,684 of taxpayer dollars fighting the doomed lawsuit?
Of course, the very first condition of the agreement between Jackson County and the Secretary of State is that the Poor Bear lawsuit end now:
[T]he term of this Agreement shall commence upon the execution hereof effective the day and year above and continue until January 1, 2023, unless amended or temrinated or extended pursuant to the terms hereof. However, the Secretary of State unilaterally reserves the right to terminate this agreement should the lawsuit currently pending against Jackson County, Poor Bear et al. v. County of Jackson et al. 5:14-cv-05059, proceed to a decision on the merits [“Memorandum of Agreement Between the South Dakota Secretary of State’s Office and Jackson County, South Dakota,” 2015.11.13].
With this agreement in hand, Jackson County is moving for dismissal of Poor Bear on the grounds that the case is no longer ripe: the plaintiffs have gotten the satellite early voting station they wanted. No harm may happen until the 2024 election, and Indians can’t sue over that potential reversal until we get there. But of course, the real play here is that Jackson County is trying to avoid having another voting rights case go on the books as a precedent for Indian plaintiffs and a blow against the forces of discrimination in South Dakota.
The real play here is that Jackson County want to make a deal with the state but cut the Indian plaintiffs who provoked this capitulation to voting rights out of the picture, leaving them high and dry for their legal costs. Attorney Frankenstein may even be setting the stage an attempt to make the plaintiffs pay the county’s lawyer bills. That ploy didn’t work in Brooks v. Gant, the last big Indian voting rights case South Dakota lost in fact if not in technicality, but throwing that spaghetti wouldn’t be any long-shottier (not to mention wrong and shoddier) than trying to make stick Jackson County’s arguments against voting equality for Indians for the past year.
And what do the lawyers or Jackson County care? Win or lose, someone else—probably we taxpayers via the South Dakota Public Assurance Alliance—foots their bill.
Bonus Trivia: Sara Frankenstein succeeded Shantel Swedlund, now Krebs, as Miss South Dakota in 1998.